p. 174Frank Rieger and Others, Respondents, v. The Pulaski Glove Company, Appellant.Headnote
Venue — change of place of trial for convenience of witnesses—when answering affidavits defective.When on a motion by the defendant to change the place of trial for the convenience of witnesses, the defendant’s moving affidavits naming nine witnesses are in proper form, but the, plaintiff’s answering affidavits are defective in that they do not give the names, addresses, or occupations of the witnesses (with three exceptions) whose testimony is necessary, but merely mention twelve partnerships without naming the members thereof whose testimony is alleged to be necessary, and are also defective in that it is not stated that the plaintiff is advised by counsel that the testimony of such witnesses is material and necessary, or that the individuals named will swear to any material fact, the place of trial should be changed.
The absence in an affidavit of such statement as to advice of counsel is a fatal defect and it cannot prevail over proper allegations by the moving party.
Appeal by the defendant, The Pulaski Glove Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of March, 1906, denying the defendant’s motion for a change of venue.
Irving G. Hubbs, for the appellant.
Arthur L. Davis, for the respondents.
The defendant appeals from an order denying a motion to change the place of trial of this action from the county of New York to the county of Oswego.
The plaintiffs seek to recover the sum of $2,190, as damages for the failure of the defendant to deliver goods which the former claim the latter contracted to sell to them. There are four causes of action set forth in the complaint, each being based upon a separate contract. The defendant admits in its answer that two contracts were made, but asserts that all the goods covered by such
p. 175contracts were delivered, and a certain amount in excess thereof. It alleges that the third contract was a conditional one; that the condition could not he performed, and that, therefore, that contract became inoperative. The defendant also sets forth in its answer that the fourth alleged contract never was made, and, further, that the plaintiffs refused to pay for goods delivered, and for that reason further orders were canceled. It also sets up a counterclaim for the value of the goods that were shipped to the plaintiffs and not paid for by them. The plaintiffs replied to the counterclaim. The defendant moved to change the venue for the convenience of witnesses, and set forth the names of nine persons whose testimony would be material and was necessary on its behalf at the trial.
The contracts were made at the defendant’s place of business at Pulaski, in Oswego county. The defendant’s affidavits are strictly in accordance with the requirements of law; the necessity of the testimony of the witnesses named by the defendant is shown ; the materiality of that testimony is made to appear; that the witnesses will testify to specific material facts is also stated and the advice of counsel to that effect is also sworn to. The only criticism relating to the merits of the defendant’s application is that the witnesses, or most of them, are in some way connected with the defendant as officers or employees. Three of such witnesses are not officers or employees of the defendant, and although the others are connected with it, there is no reason why their convenience should not be regarded, unless it plainly appears that the plaintiffs have witnesses residing in the city of Hew York whose convenience should also be considered.
The attempt was made by the plaintiffs to show that many witnesses are required to substantiate the plaintiffs’ cause of action, but the affidavits presented are fatally defective. It is stated that the plaintiffs will call as witnesses many merchants to prove their damages and to show the condition of the market in Hew York. They do not give the names, addresses or occupations of individual witnesses, except three, but they mention twelve or more partnerships, without naming the particular members of any of such partnerships whose testimony is desired. The affidavit of Alt-mark on behalf of the plaintiffs merely says that “ the plaintiffs hav
p. 176ing sued for damages in this action because of the alleged failure on the part of the defendant to carry out the terms of the contracts set forth, in the complaint, the plaintiffs will call as witnesses a large number of merchants in the City of Hew York, whose testimony will be necessary and material in behalf of the plaintiffs to prove their damages, in that each and -every one of them has made claim against the plaintiffs for damages for the failure on the part of these plaintiffs to deliver to them the very goods which the plaintiffs bought from the defendant and sold to the said merchants on orders given to the plaintiffs by the said merchants. It will be necessary to show by the said merchants the state of the market at the time when these goods were to be delivered, and the prevailing price of the same in the open market and the price which they had to pay for them in order to obtain the goods, and which the plaintiffs were unable to deliver on account of the failure of the defendant to carry out the said contracts.”
It is not stated that the plaintiffs are advised by counsel that the testimony of such witnesses is material and necessary, nor that the individuals named will swear to any material fact. It is the rule that the absence of such a statement as to the advice of counsel constitutes a fatal defect and cannot countervail allegations of the moving party. That was held by this court in Fish v. Fish ( 61 App. Div. 572 ).
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to change the place of trial to Oswego county should be granted, with ten dollars costs.
O’Brien, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order filed.